Lumley v Wagner
| Jurisdiction | England & Wales |
| Judgment Date | 26 May 1852 |
| Date | 26 May 1852 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 687
BEFORE THE LORD CHANCELLOR LORD ST. LEONARDS.
S. C. 5 De G. & Sm. 485; 21 L. J. Ch. 898; 16 Jur. 871. See Adamson v. Gill, 1868, 17 L. T. 466; Catt v. Tourle, 1868, L. R. 4 Ch. 660; Merchants' Trading Co v. Banner, 1871, L. R. 12 Eq. 23. Observed upon, Montague v. Flockon, 1873, L. R. 16 Eq. 189. Considered, Wolverhampton and Walsal Railway v. London and North-Western Railway, 1873, L. R. 16 Eq. 433. See Fothergill v. Rowland, 1873, L. R. 17 Eq. 141; Warne v. Routledge, 1873, L. R. 18 Eq. 499; Leech v. Schweder, L. R. 9 Ch. 468 (n.); Bowen v. Hall, 1881, 6 Q. B. D. 341; Alderson v. Maddison, 1881, 7 Q. B. D. 181; 8 App. Cas. 467; Donnell v. Bennett, 1883, 22 Ch. D. 838. Discussed, Whitwood Chemical Co. v. Hardman [1891], 2 Ch. 416. See Ryan v. Mutual Tontine &c., Association [1893], 1 Ch. 127. Distinguished, Davis v. Foreman [1894], 3 Ch. 654. See Robinson v. Heuer [1898], 2 Ch. 458; Manchester Ship Canal Co. v. Manchester Racecourse Co. [1901], 2 Ch. 37; Formby v. Baker [1903], 2 Ch. 553.
,"lt-o: i ,ò ' .1 II '^ [604] lumley v. wagner. Before the Lord Chancellor Lord St. Leonards. May 22, 26, 1852. [S. C. 5 De G. & Sm. 485; 21 L. J. Ch. 898 ; 16 Jur. 871. See A damson v. 1868, 17 L. T. 466; Catt v. Tourle, 1868, L. R. 4 Ch. 660; Merchants' Trading v. Banner, 1871, L. R. 12 Eq. 23. Observed upon, Montague v. Flockon, 1873, L. R. 16 Eq. 189. Considered, Wolverhamptan and Walsal Railway v. London and North-Western Railway, 1873, L. R. 16 Eq. 433. See Fothergill v. Rowlaml, 1873, L. R. 17 Eq. 141 ; Warne v. RmMedge, 1873, L. R. 18 Eq. 499 ; Leech v. Schweder, L. R. 9 Ch. 468 (n.); Bowen v. Hall, 1881, 6 Q. B. D. 341 ; Alderson v. Maddison, 1881, 7 Q. B. D. 181 ; 8 App. Cas. 467 ; Dmnell v. Bennett, 1883, 22 Ch. D. 838. Discussed, Whitwood Chemical Co. v. Hard/mam, [1891], 2 Ch. 416. See Ryan v. Mutual Tontine, de., Association [1893], 1 Ch. 127. Distinguished, Davis v. Foreman [1894], 3 Ch. 654. See -Robinson v. Heuer [1898], 2 Ch. 458 ; Manchester Ship Canal Co. v. Manchester Racecourse Co. [1901], 2 Ch. 37 ; Family v. Baker [1903], 2 Ch. 553.] J. W. agreed with B. L. that she, J. W., would sing at B. L.'s theatre during a certain period of time, and would not sing elsewhere without his written authority. Held, on a bill filed to restrain J. W. from singing for a third party, and granting an injunction for that purpose, that the positive and negative stipulations of the agreement formed but one contract, and that the Court would interfere to prevent the violation of the negative stipulation, although it could not enforce the specific performance of the entire contract. Kenible v. Kean, 6 Sim. 333, and Kimberley v. Jennings, 6 Sim. 340, overruled. The Plaintiff relied on the Defendants' knowledge of a fact said to be communicated to them in a letter, of which no copy was kept, but the receipt of which the Defendants admitted. The Defendants denied that it contained the statement alleged, but did not produce the letter, or satisfactorily account for its non-production. Held, under these circumstances, that the Plaintiffs representation must be taken to be true. The bill in this suit was filed on the 22d April 1852, by Benjamin Lumley, the lessee of Her Majesty's Theatre, against Johanna Wagner, Albert Wagner, her father, and Frederick Gye, the lessee of Covent Garden Theatre : it stated that in November 1851 Joseph Bacher, as the agent of the Defendants Albert Wagner and Johanna. Wagner, came to and concluded at Berlin an agreement in writing in the French language, bearing date the 9th November 1851, and which agreement, being translated into English, was as follows : - "The undersigned Mr. Benjamin Lumley, possessor of Her Majesty's Theatre at London, and of the Italian Opera at Paris, of the one part, and Mademoiselle Johanna Wagner, cantatrice of the Court of His Majesty the King of Prussia, with the consent of her father, Mr. A. Wagner, residing at Berlin, of the other part, have concerted and concluded the following contract : - First, Mademoiselle Johanna 688 LUMLEY V. WAGNER 1DE 0. M. * 0.608. Wagner binds herself to sing three months at the theatre of Mr. Lumley, Her Majesty's, at London, to date from the 1st of April 1852 (the [605] time necessary ior the journey comprised therein), and to give the parts following: 1st, Romeo, Montecchi; 2d, Fides, Prophete ; 3d, Valentine, Huguenots ; 4th, Anna, Don Juan; 5th, Alice, Eobert le Diable; 6th, an opera chosen by common accord.-Second, The three first parts must necessarily be, 1st, Romeo, 2d, Fides, 3d, Valentine; these parts once sung, and then only she will appear, if Mr. Lumley desires it, in the three other operas mentioned aforesaid.-Third, These six parts belong exclusively to Mademoiselle Wagner, and any other cantatrice shall not presume to sing them during the three months of her engagement. If Mr. Lumley happens to be prevented by any cause soever from giving these operas, he is, nevertheless, held to pay Mademoiselle Johanna Wagner the salary stipulated lower down for the number of her parts as if she had sung them.-Fourth, In the case where Mademoiselle Wagner should be prevented by reason of illness from singing in the course of a month as often as it has been stipulated, Mr. Lumley is bound to pay the salary only for the parts sung.-Fifth, Mademoiselle Johanna Wagner binds herself to sing twice a week during the run of the three months; however, if she herself was hindered from singing twice in any week whatever, she will have the right to give at a later period the omitted representation.-Sixth, If Mademoiselle Wagner, fulfilling the wishes of the direction, consent to sing more than twice a week in the course of three months, this last will give to Mademoiselle Wagner £50 sterling for each representation extra. -Seventh, Mr. Lumley engages to pay Mademoiselle Wagner a salary of £400 sterling per month, and payment will take place in such manner that she will receive £100 sterling each week.-Eighth, Mr. Lumley will pay, by letters of exchange, to Mademoiselle Wagner at Berlin, the 15th of March 1852, the sum of £300 sterling, a sum which will be deducted from her engagement in his [606] retaining £100 each month.-Ninth, In all cases except that where a verified illness would place upon her a hindrance, if Mademoiselle Wagner shall not arrive in London eight days after that from whence dates her engagement, Mr. Lumley will have the right to regard the non-appearance as a rupture of the contract, and will be able to demand an indemni fication.-Tenth, In the case where Mr. Lumley should cede his enterprise to another, he has the right to transfer this contract to his successor, and in that case Made moiselle Wagner has the same obligations and the same rights towards the last as towards Mr. Lumley. " johanna wagner. " albert wagner." "Berlin, the 9th November 1851." The bill then stated that in November 1851 Joseph Bacher met the Plaintiff in Paris, when the Plaintiff objected to the agreement as not containing an usual and necessary clause, preventing the Defendant Johanna Wagner from exercising her professional abilities in England without the consent of the Plaintiff, whereupon Joseph Bacher, as the agent of the Defendants Johanna Wagner and Albert Wagner, and being fully authorized by them for the purpose, added an article in writing in the French language to the agreement, and which, being translated into English, was as follows:- "Mademoiselle Wagner engages herself not to use her talents at any other theatre, nor in any concert or reunion, public or private, without the written authorization of Mr. Lumley. " Dr. joseph backer, " For Mademoiselle Johanna Wagner, and authorized by her." The bill then stated that J. and A. Wagner subsequently made another engagement with the [607] Defendant F. Gye, by which it was agreed that the Defendant J. Wagner should, for a larger sum than that stipulated by the agreement with the Plaintiff, sing at the Royal Italian Opera, Covent Garden, and abandon the agreement with the Plaintiff. The bill then stated that the Defendant F. Gye had full knowledge of the previous agreement with the Plaintiff, and that the Plaintiff had received a protest from the Defendants J. and A. Wagner, repudiating the agreement on the allegation that the Plaintiff had failed to fulfil the pecuniary portion of the agreement. 1DEQ.M.* 0.608. LUMLEY V. WAGNER 689 The bill prayed that the Defendants Johanna Wagner and Alhert Wagner might be restrained from violating or committing any breach of the last article of the agreement; that the Defendant Johanna Wagner might be restrained from singing and performing or singing at the Eoyal Italian Opera, Covent Garden, or at any other theatre or place without the sanction or permission in writing of the Plaintiff during the existence of the agreement with the Plaintiff; and that the Defendant Albert Wagner might be restrained from permitting or sanctioning the Defendant Johanna Wagner singing and performing or singing as aforesaid ; that the Defendant Frederick G-ye might be restrained from accepting the professional services of the Defendant Johanna Wagner as a singer and performer or singer at the said Eoyal Italian Opera, Covent Garden, or at any other theatre or place, and from permitting her to sing and perform or to sing at the Royal Italian Opera, Covent Garden, during the existence of the agreement with the Plaintiff, without the permission or sanction of the Plaintiff. The answer of the Defendants A. and J. Wagner attempted to shew that Joseph Bacher was not their authorized agent, at least for the purpose of adding the restrictive clause, and that the Plaintiff had failed to make the stipu-[608]-lated payment by the time mentioned in the agreement. The Plaintiff having obtained an injunction from the Vice-Chancellor, Sir James Parker, on the 9th May 1852, the Defendants now moved by way of appeal before the...
To continue reading
Request your trial
- Lai Cheng Chong v PP
-
Warren v Mendy
...may practically bind the servant to the contract, compelling him to perform it. 3 The best known of the authorities on this subject are Lumley v. Wagner [1852] 1 De G.M. & G. 604 (impressario and opera singer) and Warner Brothers Pictures Inc. v. Nelson [1937] 1 K.B. 209 (film producer and ......
- Si Rusa Beach Resort Sdn. Bhd. v Asia Pacific Hotels Management Pte. Ltd
- Pertama Cabaret Nite Club Sdn Bhd v Roman Tam
-
Specific Performance and Injunctions
...LR 17 Eq 132; Whitwood Chemical Co v Hardman , [1891] 2 Ch 416 (CA). 183 See Sections B(3)(b) and (c), above in this chapter. 184 (1852) 1 De G M & G 604, 42 ER 687 (Ch). For an examination, inter alia , of the historical context of this decision, see S Waddams, “Johanna Wagner and the Riva......
-
Table of Cases
...All E.R. Rep. 208 (Q.B.) ......................................................420, 432 Table of Cases 555 Lumley v. Wagner (1852), 1 De G.M. & G. 604, 42 E.R. 687, [1843–60] All E.R. Rep. 368 (Ch.) ....................................419–20, 421, 423–24, 430 Lytton v. Great Northern Railwa......
-
Enforcement of Contracts by Injunctions
...the court gave is “workable.” In this case, the parties, who were business 14 Ibid. at 701. 15 Above note 9. 16 Lumley v. Wagner (1852), 1 De G.M. & G. 604, 42 E.R. 687 (Ch.) [ Lumley ]. 17 Ibid. at 884. See also Paxton v. Spira (1965), 54 D.L.R. (2d) 627 (B.C.S.C.). 18 [2006] 1 All E.R. 86......
-
Specific Performance: Contracts of Personal Service
...doctrine of restraint of trade see John McCamus, The Law of Contracts , 2d ed. (Toronto: Irwin Law, 2012) c. 12, section B(4). 39 (1852), 1 De G.M. & G. 604, 42 E.R. 687 (Ch.). 40 Ibid. at 693. The Law of equiTabLe Remedies 420 the injunction may well have the effect of encouraging Wagner t......